Foreclosure May Nullify Easement

  Question: We live in a rural area near Prescott. Several years ago, we paid our neighbor $500 to record a roadway easement to give us access to the county road. Our neighbor’s home is now in foreclosure, and our neighbor has moved to Phoenix. If there is a foreclosure of our neighbor’s property, will we lose our roadway easement?

  Answer: Probably. If your neighbor’s mortgage was recorded before the roadway easement was recorded, the roadway easement is a junior lien. The general rule is that a foreclosure extinguishes all junior liens. If the roadway easement is your only access to the county road, however, even after the foreclosure you should be entitled to an easement by necessity for access to the county road. An easement by necessity is a private right of condemnation if you have no other reasonable ingress or egress to your property. You will have to compensate the bank or other new owner of the neighboring property for this easement by necessity.